The Abbeville press and banner. [volume] (Abbeville, S.C.) 1869-1924, 1887-05-04
The Aultman md Taylor Company,
plaintiffs, Respondents, vs.. j. n.
Rush and Eugenia j. Rush, De.
PENDANTS Appellants.
OpINIoN-SIMPsoN, G. J.

| by j. n. Rush ana his Wlie, Eugenla, lor lh'
purchase money Of steam engine. Th'
notes were secured by mortgage. upon
| tract OF land, the separate estate Of tho wife
which mortgage was executed by the wife
the aclion was 10 foreclose the mortgage.
| Two defences were set up. First, a breach o
con tract and counter claim for damages
growing out of said alleged breach.
the notes and mortgages, she beinga married
woman. The Master to whom the case wa
referred reported that there was no breach
wtc Ms ae
both by the terms of the statute and becaus
the contract was for the benefit of her separate
estate His monor did not concur In the lat
ter branch OF this position, TO wit: that tn
estate, but he sustained the Master In the firs
branch, holding and decreeing that the liabil
| ity OF the wife was fixed by the mortgage, q
least to the extent Of the value of the lant
embraced therein, should SO much be neces
| sary to pay the debt, and he ordered fore
closure, &C.. &c. He also allowed n fee of So
to plaintiffs attorney, to. be paid out Of th'
proceeds Of the sale.
| The appeal Of the defendants alleges error
in that his Honor sustained the findings o
| the Master. that there was no breach OF tht
contract, nor damages resulting thereIrom
cause his Honor held Mrs. Rush liable, under
her mortgage, to the extent OF the value OF tht
| land, II so much was necessary. AND third
ceeds I Of the land, to pIaintlffs' attorney.
The first question Ia a question OF fact, II
which the Master and the. Judge concurred
We have examined the evidence. and we dS
Ing as would warrant us 10 reverse it. w,
must, therefore, regard the fact thus found as
established. And we sustain the law appllet
to said finding. This dlsposes of the counter
The main question in the case is as to thu
liability of Mrs. Rush on her mortgage. o
rather the liability Of her separate estate for
debt contracted by her husband, to which she
however, was party, and to secure. .whici
she executed the mortgage in question, al
though said debt was not contracted for the
benefit OF said separate estate.
This brings up sQuarely the question Wheth
er married woman can mortgage her sepa
rate estate for debt not contracted for Its
benefit. The debt in fhct being debt OF an
band. Or whether, being herself limited te
contracts "as to her separate estate she !!
rot also confined in the execution OF mort
cages to that limit, to w.t. to contracts "as tt
The Circuit Judge held that the notes suet
on were nrllities as to Mrs. Rush, the fac
having been established that they were moi
given for the benefit OF her estate, The hold
ing was no doubt correct, under the principle
OF the recent case of Habenicht vs. Rawls &
Willhalf, Mss.
We must start out then with the PROPOSE
tion that Mrs. Rush is not liable In any way
as to her, for the reason that she had no pow
er to make them, she being at the time mar
ried woman, and the notes, not being the evil
dence Of contract 'as 10 her separate es
tate"
SO the clear question Ia, as stated, W neither 9
married woman can mortgage her separate
estate to secure such notes. 1T Will bo con
ceded, without argument, that married wo
man has no such power at common law. J!
follows, them that II she has such power, II
must be found conferred upon her, by one o.
both Of the two Other sources OF all of our law
except the common law, TO wit: the Constitu
ton OF 1868, and the statutes enacted In accor
dance Herewith. The boundary, therefore
Of the question Is the Constitution. ana thf
Act OF Assembly, upon the rights OF married
women, to which we will now address our
There is but one section In the Constitution
on this subject, which Is as follows:
.rhe real and personal property OF mar
ried woman, held at the time Of her marriage
or that which she may thereafter acquire
either by gift, grant, inheritance. devise OF
otherwise, shall not bo subject to l!vy and
sale for her husbrnd's debts, but shall be helt
as her separate property, and may be be
queathed, devised or allenated by her the
same us II she were unmarried" Article IA
Section s.
borne in mind all the time. and 1t may bt
we'll to repeat 1t here, that before the adoption
OF the Constitution Of 1863 and the Acts pass
ed since on this subject, that q married wo
power In the premises. except in trust estates
where certain power might be conferred, but
generally she was pOwerless as to all con.
tracts, mortgages, conveyances, deeds and all
such papers. Such being the fact. It follows
that she Is still powerlcss except so far as hel
rights in this regard have been enlarged by
the Constitution or the Acts, which enlarge
nent must be pointed out, and to which She
must be confined.
Now the generel right to make q mortgage
of her senaratc estate to secure even her own
debt. much less the debt of her husband or o
any other person. Certainly cannot be claimed
@ under . the Section Of the CONSTITUTION referred
to above.
THAT section has but three purposes, (neitheI
OF which embraces the power In question to
wit. First. TO DECLARE the property or the
wife. however acquired, to be her separate
estnfe. . second. to protect this property from
lew and sale for her husbands debts: and
oueath, devise or ALLEVIATE said property. II
Is true that by 1t her common law disability
has been removed TO some extent, to wit: tC
the extent OF allowing her to bcuueath. devise
and 10 ALLEVIATE her SeDdrnte estate, and this
she is authorized to do as fully as If she were
n single woman. but nothing more; her disa.
hiIity ns 10 ali eiso remains MS before 30 far as
he constitntional proyiSiOns affect her. the
nrin,a aud essential object Of which sccms 10
ba wa been TO nrotcct the prOperty OF the wife
rom Sehts and contracts Of the husband ard
to ohvi.te the necessity of a trustee 10 this
end This was. no doubt the motive and
fonndntjn OF the section and this was ne
nona nIisbad In its first brancb and then FIJI.
IorSp tha nownr to honnaoth, visc and uIipn.
ots vhicb was necessary incident to the
enjoWment of fhe IeGai ownership OF the pro.
nnrfy wit, ,vbicS tic vita had nov hnen in
ppested ''N "N'1'' WIZ "''0 -N "
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Mrs: Rusn nndS no support IN aftlcie AlF'